Yet a proposed evidentiary rule currently before the Utah Supreme Court reflects concern that reporters do everything possible to unjustifiably avoid disclosing evidence of crime, civil wrongs and threat of harm. I urge the court to reject the proposed Rule 509 and adopt instead an alternative draft - favored by four members of the Advisory Committee on the Rules of Evidence - that recognizes a hearty but not absolute journalist's privilege.
"The public has a claim to every man's evidence," the Duke of Argyle said on the floor of the House of Lords in 1742.
That maxim has since been cited multiple times by U.S. judges, and even the U.S. Supreme Court used the principle to require President Nixon to turn over White House tape recordings and documents relevant to a criminal prosecution.
Notwithstanding the general rule, however, both U.S. and Utah law contain multiple privileges for certain individuals who need not provide evidence. For example, the Utah Rules of Evidence already allow spouses to refuse to testify against one another; religious clerics to withhold confidential statements by adherents; and physicians and mental health therapists to maintain the secrecy of medical diagnoses and the results of examinations.
Utah evidence rules also allow government entities to conceal the identity of informers who bring evidence of illegal conduct. Separately, the rules provide protection from disclosure of environmental self-audits.
Earlier this year the Advisory Committee recommended that the Court adopt Rule 509 to allow news reporters a privilege not to reveal the identity of confidential sources and other confidential newsgathering information. (Public comment ends Wednesday and the rule would take effect Nov. 1.)
I agree that such a privilege is necessary; currently Utah is one of the only states without an explicit journalist's privilege in judicial precedent, state statute or evidentiary rule.
But there are two major flaws. First, the proposed Rule 509 fails to account for information gathered by journalists without a promise of confidentiality. Based on my experience both as the subject of a subpoena and as a lawyer who has represented journalists targeted by subpoenas, some reasonable protection for non-confidential newsgathering materials is necessary.
Even non-confidential materials must be given a qualified privilege (meaning it could be overcome if the public interest so dictates) to allow gathering and communication of information that facilitates democracy, enables the search for truth and serves as a check on government. This reasonable privilege also would ensure, first, that journalists are not unnecessarily drawn into personal disputes and partisan fights; and, second, that journalists are not perceived as investigatory agents of the state.
The second major flaw is that the proposed Rule 509 lists six largely superfluous exceptions. Most of these appear extremely speculative, such as journalists concealing physical evidence of crime and refusing to disclose knowledge of child sexual abuse.
Meanwhile, the alternative draft suffers no such flaws. It accounts for nonconfidential materials and, instead of a laundry list of exceptions, sets forth a reasonable balancing test for judges to apply in determining whether the privilege is justified. A judge may override the privilege in case of serious crime or threat of harm, but there is no threat of the privilege becoming entirely swallowed up in its own exceptions.
I believe the adoption of the alternative Rule 509 draft will best balance the important interests both in obtaining reliable evidence in criminal and civil cases and ensuring free flow of information.
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* EDWARD L. CARTER is an assistant professor of communications at Brigham Young
University.
